UpdateFurlough and dismissal

15th September 2021
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Since the start of Covid-19 there have been many schemes introduced by the government in an attempt to support the country’s economy during this unprecedented pandemic. Furlough has been the most notorious and, in some opinions, helpful scheme that the government have implemented and it has aided a substantial number of companies to remain afloat during this time. The scheme, although coming to an end on 31st September 2021, was recently the subject of an interesting tribunal decision that has shed some light on an employer’s duty to their employees in terms of redundancy or furlough. As will be discussed below, the judge in this case reached the conclusion that a failure to consider and/or offer furlough as an alternative to redundancy, made the dismissal of the claimant, unfair.

In this case, the claimant had been employed as a care assistant since 2018 and had been looking after an elderly individual. In February 2020 the individual was moved to a care home following admission to a hospital. As a result, the claimant was no longer required as their carer. In May the respondent wrote to the claimant to inform them that their role had become redundant and the respondent was unable to offer any other suitable work. In a witness statement for the claimant, it is stated that at this point, the claimant requested to be furloughed, but the request was rejected. Following a meeting in June and a further meeting in July, the respondent gave the claimant notice of dismissal on the grounds of redundancy. Following a failed appeal with the respondent that was deemed by Judge Gumbiti-Zimuto as nothing more than a “rubber stamp” process, the claimant took her claim to the tribunal.

In the judgment, Judge Gumbiti-Zimuto declared that the grounds for the dismissal of the claimant were valid as the role had become redundant. According to the respondent, the requirements for live-in workers had ceased or diminished and the only work that was available, was not suitable for the claimant. This was accepted by Judge Gumbiti-Zimuto as a valid explanation for dismissal.

However, the question of whether the dismissal was unfair was something separate altogether. Judge Gumbiti-Zimuto reiterated that the role was redundant and the prospect of an unfair dismissal claim could not be based on this. Rather, any unfair dismissal claim would be due to the respondent’s failure to consider and/or offer the claimant furlough in response to her request in May.

In explaining the furlough scheme itself, Judge Gumbiti-Zimuto explained that it was introduced for the specific aim of helping employers refrain from laying off employees as a result of a reduced workload due to Covid-19. Judge Gumbiti-Zimuto clarified this further to explain to the respondent that where the Covid-19 pandemic had severely impacted the workload of the company, to the point where there was not enough work to pay/justify paying the employees, the furlough scheme would come to the aid of the company. Judge Gumbiti-Zimuto stated that this specific situation described by the claimant and in turn the respondent, was “the type of situation that the furlough scheme envisaged.”

Furthermore, Judge Gumbiti-Zimuto pointed to another benefit of the scheme. It prolonged dismissing workers to give the company the opportunity for the workload to increase again and in that event, take the employees off of furlough. In this case, although there was no work available at that exact time for the claimant, the future prospect of work was unknown. From this perspective, placing the claimant on furlough, even for a minimal period, would have given the respondent the opportunity to see if there was any change in the amount of work available and possibly offer the claimant work in the future.

The failure to consider the future prospect of work and the benefits of the scheme in a case such as this, made the dismissal of the claimant unfair.

Charlotte Turnbull
W Legal Limited
charlotte.turnbull@wlegal.co.uk

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